All democratic constitutions provide for the guarantee of certain rights, which are inviolable and beyond the reach of the state. Rights arise from very social nature of man and which are the external conditions necessary for the greatest possible development of the capacities of the personality. Fundamental Rights are sacro sanct and the supporting pillars of democracy as a form of government and as a way of life. . Democracy and inviolable fundamental rights go together. In this assignment I would like to elaborate the Fundamental Rights under the Constitution of India.
Constitutionalism is an achievement of the modern world. The following are the salient features of Indian Constitution.
The longest written constitution in the world
The idea of popular sovereignty
Supremacy of the constitution
Provision for Fundamental Rights
Provision for Directive Principles of State Policy
Provides Parliamentary system of Government
Provision for secularism
Encouraging Socialistic pattern of society
Sovereign Democratic Republic
Provision for Emergency
Provides single citizenship
Provision for single integrated judiciary
The constitution of India has a wonderful preamble. The preamble is an introduction to a Constitution. It proclaims the source, objectives and date of adoption of the constitution. The preamble of the Indian constitution reads as follows:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
”’JUSTICE”’, social, economic and political;
”’LIBERTY”’ of thought, expression, belief, faith and worship;
”’EQUALITY”’ of status and of opportunity;
And to promote among them all
”’FRATERNITY”’ assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Demand for Fundamental Rights in India
During the 19th century a demand for civil rights in India took deep root. The Indians were subjects and not citizens under British rule. Before 1947 India did not have national liberty, and the individual, therefore, could never imagine to have individual freedom with the complete set of guaranteed fundamental rights. As early in 1895, under the inspiration of Bal Gangadar Thilak, a swaraj bill was prepared and this thought in terms of a constitution guaranteeing fundamental rights. In 1928, the Nehru Report spoke of the need to have fundamental rights in the future constitution of India. In 1933, the Karachi session of the Indian National Congress adopted a resolution in favor of fundamental rights. But the British government did not accept the demand of the Indians to incorporate a list of fundamental rights in the constitutions introduced in India.
Fundamental Rights: A Preface
The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens’ rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.
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The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India and the High Courts of States have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India.
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment passed by a two-thirds majority of each House of Parliament. The imposition of a state of emergency may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
Classification of Fundamental Rights
The Constitution of India in part III provides for six categories of fundamental rights. They are;
Right to Equality
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14-16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17-18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.
Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
The practice of untouchability has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state.
Right to Freedom
The Right to Freedom is covered in Articles 19-22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assembly, freedom of association without arms, freedom of movement throughout the territory of India, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may impose on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalize any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20-22. Article 20 provides protection against arbitrary and excessive punishment to any person who commits an offence. Article 21 prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law. The Supreme Court also ruled that “life” under Article 21 meant more than a mere “animal existence”; it would include the right to live with human dignity and all other aspects which made life “meaningful, complete and worth living”. Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one’s own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.
Right against Exploitation
The Right against Exploitation, contained in Articles 23-24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. Article 23 prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labor or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. Article 24 prohibits the employment of children below the age of 14 to work in any factory or mine or in any other hazardous employment. This has been provided to protect the health of future citizens, and also on the ground of humanity.
Right to Freedom of Religion
The Right to Freedom of Religion, covered in Articles 25-28, provides religious freedom to all citizens and ensures a secular state in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other’s right to freedom of conscience. Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State’s power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian’s) consent.
Cultural and Educational Rights
The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilization of any aid granted by it.
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of India seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus, mandamus, prohibition, certiorari and quo-warranto for the enforcement of the Fundamental Rights The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be on the basis of a Public Interest Litigation. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.
Directive Principles of State Policy
The constitution of India envisages a welfare state for the country in which liberty, equality and fraternity will prevail. Part IV, from article 36 to 51 of the constitution [16 Articles] deals with Directive Principles of State Policy. They are more or less elaboration of principles and ideals contained in the preamble of the constitution. They are the core of our commitment to the silent social revolution. They fix certain social and economic goals to be attained through a non violent social revolution.
The Directive Principles of State Policy is directed towards the establishment a welfare state in India. These positive guidelines can be broadly divided into three.
The principles grouped in this category are socialistic both in their direction and content. Article 38 of the constitution directs the state to secure a social order for the promotion of the people. Article 39 of the constitution briefly lays down the basic philosophy of democratic socialism. It directs the state to secure,
Adequate means of livelihood both for men and women
Fair distribution of resources, that is, ownership and control of material resources of the community are so distributed as best to subserve the common good.
The wealth of the nation should not be concentrated in the hands of a few
Equal pay for equal work for both men and women
The children are given opportunities and facilities to develop in a healthy manner and that childhood and youth are protected against exploitation and against moral and material abandonment
Article 41 provides for right to work, to education and to public assistance. Article 42 directs the state to make provision for securing just and humane conditions of work and for maternity relief. Article 43 directs the state to provide a living wage and conditions of work etc.
Certain principles of state policy seek to organize the new order in accordance with some Gandhian principles, Article 40 says the state shall take steps to organize village panchayaths and endow them with such powers and authority as may be necessary to enable them to function as units of self government. Article 43 directed the state to promote cottage industries in an individual and cooperative basis in rural areas.
According to the Article 46, the state shall promote with special care educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Article 47 directs that the state shall regard raising the level of nutrition
Directive principles under this category direct the state to secure for all citizens a uniform civil code to the people belonging to different religions. Article 45 directs that the state shall endeavor to provide and compulsory education. Article 49 provides that it is the obligation of the state to protect monuments or place or object of artistic or historic interest, from spoliation, disfigurement, destruction, removal, disposal or export .Article 50 directs the state to take steps to separate the judiciary from the Executive in the public services of the state. Article 51 stands for the promotion of international peace and security.
The following are the Fundamental Duties prescribed by the Constitution of the nation under PART [IV-A] to its every citizen:
To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
To cherish and follow the noble ideals which inspired our national struggle for freedom.
To uphold and protect the sovereignty, unity and integrity of India.
To defend the country and render national service when called upon to do so.
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
To value and preserve the rich heritage of our composite culture.
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
To develop the scientific temper, humanism and the spirit of inquiry and reform.
To safeguard public property and to abjure violence.
To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
The Fundamental Rights embodied in the Indian constitution acts as a guarantee that all Indian citizens can and will lead their lives in peace as long as they live in Indian democracy. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus. The directive principles are aiming at the welfare state. The fundamental duties are for the establishment of a just nation which is socially committed. So all of these are essential for the survival of a transparent democracy. Modern Social Work is highly based on the rights of individuals. So knowledge of rights and duties become quite significant in the social work as a profession and as an area of study.
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